Would Rumsfeld stepping down leave him open to prosecution? In 2004, the Center for Constitutional Rights filed a criminal complaint in Germany on behalf of several Iraqi citizens who alleged that a group of U.S. officials committed war crimes in Iraq. Rumsfeld was among the officials named in the complaint. The Iraqis claimed they were victims of electric shock, severe beatings, sleep and food deprivation and sexual abuse.

Germany’s laws on torture and war crimes permits the prosecution of suspected war criminals wherever they may be found. Now, the president of the Center for Constitutional Rights, Michael Ratner, is returning to Germany to file a new complaint. Michael Ratner joins us in our firehouse studio.

AMYGOODMAN: Michael Ratner joins us in our studio here in New York. Former CIA analyst Mel Goodman and journalist Bob Parry are still in Washington. Michael, why are you headed to Germany in the next few days?

MICHAELRATNER: Thank you for having me on this issue, Amy. One of the shocking things really so far about the coverage of Rumsfeld’s resignation, there’s not a word in any of it about torture. And here, Rumsfeld is one of the architects of the torture program of the United States. I mean, we have those sheets of paper that went to Guantanamo that talk about using dogs and stripping people and hooding people. We have one of our clients, al-Qahtani, who was in Guantanamo. Rumsfeld essentially supervised that entire interrogation, one of the worst interrogations that happened at Guantanamo. He actually authorized a rendition, a fake rendition of al-Qahtani, where flew him — put a — blindfolded him, sedated him, put him on an airplane and flew him back to Guantanamo, so he thought he would be in some torture country. So here you have Rumsfeld, one of the architects, not a word about it.

AMYGOODMAN: How do you know that he personally supervised it?

MICHAELRATNER: There’s actually documents out there, that there’s part of the log that comes out. The log was published of his interrogation. And then there’s a report called the “Schmidt Report,” which was an internal investigation, in which there are statements in there about Rumsfeld being directly involved in the interrogation of al-Qahtani. So this guy has committed — without any question, this guy has committed war crimes, violations of the Geneva Conventions.

Now, what do we do now? Well, we went to Germany before. Germany dismissed the earlier case on Rumsfeld, partly for political reasons, obviously. Rumsfeld said, “I’m not going back to Germany as long as this case is pending in Germany.” He had to go to the Munich Security Conference. They dismissed the case two days before. What they said when they dismissed it, what they said was, we think the United States is still looking into going up the chain of command, essentially, and looking into what the conduct of our officials are.

In fact, now, two years later, look where we are. One, he has resigned, so any kind of immunity he might have as a vice president [sic] from prosecution is out the window. Secondly, of course, as, you know, a little gift package to these guys, you know, our congress with the President has now given immunity to US officials for war crimes. They basically said you can’t be prosecuted for war crimes. That’s in the Military Commission Act. Now, that immunity, like the immunities in Argentina and Chile during the Dirty Wars, does not apply overseas.

So, now you have Germany sitting there with — there’s no longer an argument the US can possibly prosecute him, because within the US, he’s out. So you have Germany sitting there with a former Secretary of Defense and basically in an immunity situation in the United States. So the chances in Germany have been raised tremendously, I think, and the stakes for Rumsfeld, not only in Germany, but anywhere that guy travels, he is going to be like the Henry Kissinger of the next period.

JUANGONZALEZ: But then, what would you have to do? You would have to re-file the case before — is it before an international court in Germany or in German courts?

MICHAELRATNER: We’re actually going on Tuesday. We’re re-filing it in German courts under their law, which is universal jurisdiction, which basically says a torturer is essentially an enemy of all humankind and can be brought to justice wherever they’re found. So we are going to Germany to try and get them to begin an investigation of Rumsfeld for really a left-out part of this picture, which is the United States has essentially been on the page of torture now for five years.

AMYGOODMAN: Mel Goodman, as you listen to this, have you ever seen this, an American official concerned about going abroad — you mentioned, Michael, Henry Kissinger — but because they could be prosecuted? And how possible do you think this is, as a former State Department and CIA analyst?

MELVINGOODMAN: Well, I think the record is quite clear. War crimes have been committed. Bush, Cheney and Rumsfeld combined to sponsor the memos by John Yoo and Jay Bybee and others to sanction torture. CIA officials have committed war crimes. DOD officials have committed war crimes. If you look at the three decisions of the Supreme Court — Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, Rasul v. Bush — clearly laws have been broken, serious laws have been broken. And now the Congress is trying to rewrite the laws to launder these charges against these people.

But the ultimate question is, will any international body take on these charges, take on these cases, and really operate against high-level American officials? And I guess I have my doubts that this will be done. But I think what Michael Ratner is doing is important to at least establish the record of this pattern of torture and abuse, secret prisons, renditions and extraordinary renditions. I think it’s unconscionable what America has done in the name of the so-called war against terrorism over the last several years. And, of course, the war against terrorism is now the mantra of this administration, and Bob Gates incorporated it a few times in his very brief remarks yesterday, upon receiving this nomination. So this is a very important issue. I’m not optimistic that a court will take it on, but I think it’s very important to get the record out there for all to see what has been done in the name of the United States. This has been unconscionable behavior.

AMYGOODMAN: Michael Ratner, the White House recently proposed changing the War Crimes Act of 1996, that would narrow the scope of punishable offenses. The new list would exclude humiliating or degrading treatment of prisoners. Military law experts believe the Bush administration is effectively rewriting parts of the Geneva Convention, but this is US law. Why do they even have to bother, if they’re granting immunity to officials in the new War Commissions Act of 2006?

MICHAELRATNER: I’m not sure I understood. They clearly did. They already —- the Military Commission Act -—

AMYGOODMAN: They already did it, but they’re also trying to change the 1996 War Crimes Act.

MICHAELRATNER: They did do that.

AMYGOODMAN: By the new Commissions Act.

MICHAELRATNER: The new Commissions Act actually modifies — we have a statute that makes violations of the Geneva Conventions war crimes. Because for five years they had been violating that statute in the belief that Geneva Conventions didn’t apply to the war on terror, and as Mel said, now that the Supreme Court says the Geneva Conventions do apply, these guys are sitting there and they’re not sleeping well. They’re not sleeping well, going back, because they’ve been torturing people or violating Geneva for five years. And going foward, as the President said in that September 6 press conference, we want to continue using CIA sites and doing this to people. So they have been forced to modify the War Crimes Act. That doesn’t affect what happens in Germany, other than the fact that it now says to the Germans, “Look at, you guys, first they violated Geneva, and now they’re immunizing themselves.”

JUANGONZALEZ: I’d like to ask Mel Goodman, given this situation, one of the things that is clear is that the military, many of even the highest-ranking military officers were in virtual rebellion against Secretary Rumsfeld, and it’s no accident that the major newspapers, the Military Times and Navy Times, just a few days before the election called for his resignation. Now, you have Bob Gates coming in and, as you say, he will try to clamp down on dissidents within the military. But given the situation in Iraq right now and this whole issue of the military being drawn more and more into war crimes through torture, do you expect that there’s going to be success in the civilian leadership led by Gates regaining control over dissent within the military?

MELVINGOODMAN: Well, I don’t think Gates will have a big role in this. I think the important role has been played by the military lawyers. I think the real heroes in this has been the Judge Advocates Corps, the military officers who serve as lawyers in the military, who have gotten essentially reinstatement of the Uniform Code of Military Justice and a military that is obedient to the Geneva Conventions. So there’s been great progress by the Pentagon here.

I think what Gates will perform for the Pentagon is just representing the relief that all of these officers feel, that they no longer have to face the arrogance and the ignorance of Donald Rumsfeld on a day-by-day basis. So I think Gates will be in there to smooth things down at the Pentagon, in the same way that George Herbert Walker Bush came to the CIA in the 1970s at a very controversial and tendentious point in the CIA’s history, just to calm everything down for awhile, to stop the leaks, to stop the accusations, and essentially to be more loyal to the Bush administration.

AMYGOODMAN: Let me ask a quick question to Michael Ratner, as we wrap up. We have a new congress, Democrat congress, Democrat senate. Is there any discussion of accountability? Conyers talked about it before, when he was in the minority. Nancy Pelosi just announced impeachment is off the table. What do you want the Democrats to do?

MICHAELRATNER: Well, the first thing I would want the Democrats to do, the absolute first thing, is restore the writ of habeas corpus to non-citizens both here in the United States and around the world. I would have them — 48 of them voted to have it restored — or not restored, but not taken out before. I would like to see them make an effort to do that. What are the chances of this? I think they’re very low. I would love to see Conyers open a full investigation into the Iraq war. I would love to see the Intelligence Committee open a full investigation into torture.

AMYGOODMAN: We’ll have to leave it there. Michael Ratner, Melvin Goodman, Robert Parry, I want to thank you all very much for being with us.